By Dr Minh Alexander NHS whistleblower and former NHS consultant psychiatrist, 2 May 2018
On whistleblower protection, Robert Francis rejected statute in favour of grease.
Three years ago, the lawyer argued that changing the law to properly protect whistleblowers would take too long. Instead, he advocated for “nimble” Guardians, local and National, to “oil the wheels”.
“The Freedom To Speak Up Guardian… watches over the process, and ‘oils the wheels’”
Page 150 report of the Freedom To Speak Up Review
One could almost forgive a powerful man for thinking that you can get things done by having a word in the right ear.
But what of mere mortals, and the mostly female nursing assistants and care assistants who get ignored because someone doesn’t think they’re important enough? Or the BME staff who are more likely to be ignored and victimised if they speak up?
Francis recommended that Guardians should not have any powers, but “authority”:
Page 169 Freedom To Speak Up Review
Wishful thinking and warm words are all too easy when you are betting on someone else’s future.
Unfortunately for whistleblowers, Francis left many convenient loopholes and escape clauses strewn about:
“The intention of my proposal is to provide an officer [National Guardian] with the widest discretion to decide whether or not it is appropriate to become involved in a particular case, and, if so, what measures of intervention may be appropriate.”
Page 169 Freedom To Speak Up Review
Three years on, the folly of deliberately designing a system with no clear rules is clear. The National Guardian’s Office (NGO) declined to help Lloyd Armstrong a whistleblower from the very troubled Essex Partnership NHS Foundation Trust, following which he was sacked.
A complaint about this was rejected on questionable grounds. This decision was upheld by Francis, ruling on the performance of his own creation. No conflict there.
Armstrong has yet to hear about the progress of a second complaint about the Office, submitted in February 2018 in the light of new information which suggested that the Office has acted inconsistently. Perhaps exercising the ‘wide discretion’ that Francis proposed, contrary to most accepted principles of good public administration and fairness.
On 28 March 2018 Armstrong asked the NGO once more to review his case, on grounds that there were no longer any outstanding processes and that ongoing patient safety and governance issues had emerged at his old trust, of a similar nature his original concerns. On 24 April 2018 the NGO sent him a referral form to fill in. The slow-moving and unsupportive process was not reassuring.
And Armstrong has received no response at all from Robert Francis to the following question, raised in other correspondence:
“I would be very grateful if you could clarify to me what was in your mind when you made your original recommendation in the report of the Freedom To Speak Up Review that the National Guardian should help ensure redress for harmed whistleblowers, including through a direction by a regulator if necessary.
Please could you give some practical indications of the sort of cases and scenarios that would in your view qualify for such help from the National Guardian.”
Letter by Lloyd Armstrong to Robert Francis of 4 February 2018
This silence is very significant. If the great man cannot answer on this pivotal point, for whatever reason, that must surely signal serious problems with the Freedom To Speak Up Project.
Francis’ reported comments at a Westminster Forum meeting on 26 April 2018 do not exactly convey confidence in the project’s progress:
There has been virtually no information in the public domain about how the National Guardian has handled referrals for whistleblower case review. This is despite the fact that conducting case reviews was the core function for which her office was established: ‘Principle 15 – External Review’. One might not think so though, from the subsequent mission drift to that of primarily cheerleading.
Principle 15 of 20 key principles from the Freedom To Speak Up Review
“Principle 15 – External review
There should be an Independent National Officer resourced jointly by national systems regulators and oversight bodies and authorised by them to carry out the functions described in this report, namely:
• review the handling of concerns raised by NHS workers, and/or the treatment of the person or people who spoke up where there is cause for believing that this has not been in accordance with good practice
• advise NHS organisations to take appropriate action where they have failed to follow good practice, or advise the relevant systems regulator to make a direction to that effect
• act as a support for Freedom to Speak Up Guardians
• provide national leadership on issues relating to raising concerns by NHS workers
Most peculiarly, the National Guardian’s first annual report gave no data at all on case review activity. This was particularly odd because she has asked local Guardians to record and report on their case activity, so the absence of data about her own Office’s activities could hardly have been due to lack of awareness.
Armstrong wrestled some data out of the National Guardian’s Office on its handling of cases. An initial response to his FOI request had a touch of gloss and left some key issues unclear.
Status of all referrals for case review received by the National Guardian
Source: FOI disclosure by National Guardian’s Office 4 April 2018
That is, the National Guardian’s rejection rate for ‘processed’ cases was by implication 57% (12 out of 21).
The most frequent reason given for declining review of whistleblowers’ cases was that there would not be sufficient learning generated:
Source: FOI disclosure by National Guardian’s Office 4 April 2018
The whistleblowers’ whose concerns were covered up and whose careers and livelihoods might depend on case review would probably take a different view. Perhaps if the NGO trimmed its PR spend, it might be able to afford some more case reviews. . (The NGO has admitted to spending at least £261,101 to date on PR staff and conferences , although the real figure may be more as the number of spin doctors has tripled from one to three since the Office was established). Unsurprisingly, there is more to come about the NGO’s failure to help whistleblowers in distress – more of that another time.
Strikingly the FOI revealed that no whistleblowers have returned any feedback data to the National Guardian about the case review service:
This is despite the NGO restricting requests for feedback to only those who succeed in applying for case review, not those rejected, thus potentially skewing results in its favour. But perhaps the silence by whistleblowers is not surprising given that the NGO maintains steadfastly, despite Francis’ recommendations that it seeks redress for harmed whistleblowers as part of case review, that it has no responsibility for helping harmed whistleblowers:
At her conference on 6 March 2018 Henrietta Hughes told representatives from NHS trusts that she was advising regulators to treat lack of whistleblowing disclosures and failures to return whistleblowing data as risk indicators. So will the National Guardian’s overseers apply the same reasoning to her Office?
And how does Robert Francis’ miracle grease work in relation to the NHS whistleblower employment scheme?
Armstrong, who had been accepted as a suitable person for the NHS whistleblower employment scheme, asked Dido Harding the Chair of NHSI if the regulator could ensure his safe return to his old trust, which has vacancies.
Many whistleblowers would not wish to return to the scene of prior conflict, but understandably there will be some like Armstrong who will. Family commitments may make it difficult to relocate, relocation is costly and some will still have the support of old colleagues.
Ensuring a whistleblower’s safe return to an erring employer is the ultimate test of the system’s “authority”, upon which Francis banked. Indeed, Francis went as far as to recommend that NHS regulators should direct remedy for whistleblowers:
“7.6.12 The INO should be authorised by these bodies to use his/her discretion to…to advise the relevant NHS organisation, where any failure to follow good practice has been found, to take appropriate and proportionate action, or to recommend to the relevant systems regulator or oversight body that it make a direction requiring such action. This may include…offering redress to any patients or staff harmed by any failure to address the safety risk”
Disconcertingly, there was also some row back on whether whistleblowers who have been accepted by the whistleblower employment scheme can really be considered bona fide whistleblowers.
“The [Employment Support Scheme] panel decision therefore does not amount to de facto acceptance that you are a genuine whistleblower or that there are no significant performance issues with your previous employer; only an employment tribunal can determine these issues.”
This was rather Kafkaesque because whistleblowers must prove to NHSI that they are genuine whistleblowers in order to be accepted onto the whistleblower employment support scheme.
Harding’s contention that only a Court can decide who is a genuine whistleblower is an unworkable counsel of perfection. For example, it may be so obvious that someone is a whistleblower that in the course of litigation, parties may agree upon this before the court rules. Similarly, an independent investigation or public inquiry may accept that someone is a whistleblower. Regulators are in a position of power and oversight which allows them to easily confirm whether a worker has made qualifying public interest disclosures, so such fence sitting is not justifiable.
But if even the regulators who are running the NHS whistleblower employment support scheme are thrice denying whistleblowers, what hope is there?
Armstrong had a practical demonstration of this when he tried to apply for a Healthwatch post, of ‘Information and Signposting Officer’ for which he was amply qualified having been a longstanding, clinically qualified NHS worker (RMN) with professional people skills and a former trust staff governor.
He asked NHS Improvement three times over more than two weeks to support him with the application, but received no answer. Only after NHSI was embarrassed by a social media disclosure, on the day before the closing date for applications, was there a response. NHSI claimed that Armstrong’s emails had gone into the wrong folder. It then also struck a strange, incongruous note by officiously asking him to confirm that he had sent his messages to the correct address.
Armstrong asked NHSI if it would negotiate a guaranteed job interview on his behalf. Guaranteed job interviews, in cases where applicants meet the person specification, are something that NHSI claims to be providing as part of the whistleblower employment support scheme. But NHSI came back to Armstrong empty-handed – he was not shortlisted – and NHSI’s contribution was to tell him that he could contact Healthwatch for feedback on why his application had been unsuccessful.
Armstrong has challenged NHSI about whether a guaranteed job interview would have been secured if it had responded in timely manner to his requests, and he awaits a reply.
As part of Robert Francis’ recommendations in February 2015 that an employment support scheme should be set up for exiled NHS whistleblowers (he recently clarified that he had expected this to be a re-employment scheme), he advised that a pool of employers willing to offer trial employment should be established.
Whistleblowers have repeatedly asked NHSI about this since March 2017. It has responded with promises, procrastination and most recently, hostile denial of any need for much preparatory work on establishing an employer pool. The latter had the ring of a post hoc invention, to excuse inaction. The latest position is that negotiations with employers will take place when need is identified in individual cases.
I cannot reveal the details of the discussions because, as previously reported, NHSI has taken to blanket gagging of all the proceedings of the employment support scheme ‘Design and Monitoring Group’. However, this is a NHSI document disclosed via FOI which reveals some of the claims that the regulator has been making about the employer pool, as recently as February 2018.
NHSI’s latest ‘ad hoc strategy’ to employers hardly helped Armstrong.
Would it be too harsh to wonder if that it is perhaps the point? I doubt it.
Whistleblowers press on, but judging from the ample evidence of obfuscation and resistance there are many, many miles to go. Sir Robert has many promises to keep for the woods are dark and deep.